Viewpoint: Bills Too Flawed to Work

Nearly all of our political leaders agree that we must banish the "too big to fail" doctrine in banking, but neither the financial reform bill approved in the House nor the bill promoted by Senate Banking Committee Chairman Chris Dodd, D-Conn., will eliminate it.

The five largest banks control some two-thirds of assets in the U.S. banking system. As long as that condition exists, we will never be rid of "too big to fail."

Large banks almost never get into major trouble in isolation. When the viability of a megabank is threatened there is almost certainly something very wrong in the markets, and most if not all large banks are suffering.

The government cannot and will not allow the largest banks to fail because the economy would collapse.

No law enacted by Congress will override that law of economics and political imperative.

Suppose Congress went so far as to declare that "the government may not under any circumstance provide any financial assistance to prevent any bank from failing," which is a far stronger admonition than any language under consideration. When the next banking crisis hits — which will be all too soon if we do not make substantial reforms in the way we regulate banks — there will be a new Henry Paulson on the scene who will race to Capitol Hill to demand a taxpayer-funded rescue package.

The current reform proposals have it upside down. Instead of focusing so much energy on forcing megabanks to fail in an orderly way, which is not going to happen, the reforms should be directed at vastly improving the regulation of banks to keep them out of trouble.

Sen. Dodd had it largely right last November when he proposed to consolidate oversight of federally chartered banks and thrifts and their holding companies into a strong, independent Financial Institutions Regulatory Authority. The Federal Reserve and Treasury could have two seats on the FIRA's five-member board, giving them access to information and a voice in policy.

The FDIC should remain an independent watchdog for federally chartered institutions and could oversee state-chartered institutions. This would preserve the state/federal banking system.

While the Senate and House bills would create a Systemic Risk Council to monitor developing risks to the system, both bills would neuter the council by putting it under the control of the Treasury the other agencies it is supposed to be overseeing. A strong, independent Systemic Risk Council is critical to avoiding repetition of the policy blunders that led to the panic of 2008.

What makes us think that the same regulatory regime that gave us the banking and S&L crises of the 1980s and the panic of 2008 is going to avoid the next crisis? What gives us confidence that the Treasury has the wisdom and political independence to lead the Systemic Risk Council in the right direction?

The Treasury pronounced in the early 1980s that the S&L problem was not one of "solvency" but an "earnings" problem and that the correct remedial action was to grant S&Ls broader powers, use "regulatory accounting" to mask the industry's insolvency and allow S&Ls to grow more rapidly. These policies resulted in $150 billion of taxpayer losses.

In recent years, the Treasury (along with the Fed) advocated capital models (Basel II) to allow U.S. banks to reduce their capital levels to international norms. We are very fortunate that the FDIC fiercly resisted this move.